Criminalization of Poverty

“Anyone who has ever struggled with poverty knows how extremely expensive it is to be poor.” – James Baldwin-

Editor’s Note: This column written for The PuLSE Institute by Detroit attorney Victoria Burton-Harris highlights the intersectionality of the criminal justice system and poverty. The issues Burton-Harris raises in this article hardly merit the spotlight but does affect many of the city’s underserved population. For submission inquiries email info@thepulseinstitute.org

By Victoria Burton-Harris

There is a symbiosis between capitalism and the American criminal justice system. They are mutually dependent – feeding on each other, always expanding and all-consuming. Historically, the majority of people convicted of crimes are members of the bottom of the American caste system. They are defined by their poverty and marginalization. These are necessary characteristics because our justice system needs to consume them to fuel continuous growth.

If you are born poor, you will probably die poor. Regardless of the inspiring anecdotes of successful people escaping poverty, most poor people do not. This is because there are structures and systems that exist to ensure that the caste system always expands and consumes. From these social constructs, emerge dominant groups and subordinate groups. The dominate group disproportionately share the benefits of tangibles with positive social values – wealth, political power and authority, access to good health care, stable careers, nice homes and access to good education.

Social Dominance Theory suggests that group-based hierarchies are dynamic – constantly reorganizing themselves and adapting to the contours of the dominant group for purposes of protecting their position as the dominant group. Looking at the American criminal justice system, it’s obvious how dominant groups have interpreted and reinterpreted the criminal code solely to protect and maintain their dominance. Unemployment fraud, loitering, and driving while license suspended are only a few examples of such laws. These are laws that rarely affect the dominant group because they are not plagued by poverty. They do not have a reason to commit such crimes, and, when they do, they are rarely convicted.

It is the impoverished who struggle with job security, the ability to afford treatment for life-threatening illnesses, and the ability to provide for their family who tend to be charged with such serious, yet low-level crimes.

As a criminal defense attorney, I’ve seen how criminal charges – even minor offenses – can derail a person’s entire life, especially if that person is struggling with poverty and the uncertainty that it brings. The mere accusation of a criminal act can have devastating consequences. Members of the lower and middle class usually have more to lose than their wealthier, dominant counterparts.

For example, once charged, an ever-increasing number of folks are held in county jails with high cash bonds they cannot afford. Typically, this is because they are unrepresented at the initial court hearing where bond is set (the constitution does not require that you have an attorney at this stage). Without representation at their arraignment, the defendant is at the mercy of the court and may be unable to pay the requisite bond amount to secure their release.

After bail is set (or denied outright), the accused languishes in jail, awaiting a lower bond or final disposition of their case. While in jail, poor defendants oftentimes lose their jobs; are evicted from their rental homes; and must defend against challenges to custody of their children. This all happens before the accused has posted bond.

This is the American criminal (in)justice system. It not only criminalizes survival behavior, but also funnels defendants toward plea deals. These plea agreements have a domino effect. In Wayne County, Michigan, it is a well-known practice for the prosecutor’s office to charge a defendant with more criminal charges than they can prove (“over-charging”) in an effort to coerce a defendant to accept a plea agreement that avoids a trial. This presents a challenge to not only defendants but their defense attorneys as well.

The hardest conversation to have with a client is whether they should take a plea deal in order to avoid harsh penalties such as mandatory prison sentences for a crime they did not commit. The alternative can be daunting – proceed to trial with jurors who are likely not their peers nor struggle with poverty.

It is common for prosecutors to threaten harsher penalties and less favorable plea offers if a defendant does not immediately plead guilty at the first preliminary hearing. Sadly, most defendants waive their right to challenge their charges at the preliminary stage and agree to proceed to trial (if they have not already accepted a plea deal).

After a plea agreement is approved by the court the defendant’s case proceeds to sentencing. At sentencing, a different set of challenges comes into play – fees. There are several fees that follow a plea agreement and include court costs, state costs, crime victims rights fee (even if there was no victim), fines, and probation oversight fees. One’s inability to pay these exorbitant fees is often met with additional charges, subsequent arrest warrants, and more jail time. This all translates into more money that the already struggling defendant must find in order to remain free.

If a defendant cannot pay the fees, and, thus, cannot avoid incarceration, they are back into the system that they were desperately trying to escape. The American criminal justice system is an all-consuming machine. Once it gets a hold of you, it doesn’t let you go. And the gears of the machine are particularly good at keeping poor people locked in its grasp. The system depends on the poor; it thrives on the poor. The parasitic relationship between the system and capitalism – which demands constant growth at all costs – is inseparable. The system is god-like in its influence and strength, but it is not infallible.

As the American system feeds on its own citizens, the number of people who understand its mechanisms continues to increase. More and more people are realizing that they must fight – even if that only amounts to a disruption of the system. As a criminal defense attorney, I am constantly re-examining my role in the fight against the machine and the criminalization of poverty. I’ve learned that change may not happen by appealing to those in power who benefit from the system.

Change happens only after disruption. Electing politicians who understand how poverty affects everyone is the first step to disrupting our current system. Repelling mandatory sentences, eliminating the cash bail system, giving more discretion to assistant prosecutors handling cases, reclassifying low-level misdemeanor crimes as civil infractions are just a few ways we can begin to reform the current system.

We each have a role and contribution to make – yours may be a monetary contribution to a bail fund/project or mobilizing the community through education and advocacy. If we don’t play an active role in shaping our future, others will shape it for us and for future generations.

Victoria Burton-Harris is the managing partner of McCaskey Law, PLLC. She specializes in criminal defense and family law. Victoria has been recognized as a Super Lawyers Rising Star (2017, 2018). She has also been recognized as one of the Top Ten Criminal Defense Attorneys in Michigan by the National Academy of Criminal Defense Attorneys (2017).

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The PuLSE Institute (Institute for Public Leadership and Social Equity) is a Detroit based independent non-partisan anti-poverty think tank, committed to deep analysis of the broad spectrum of inequality issues affecting people.